Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-13
ooTRT OF APPEALS.
>, DecEsoRs Rendered at the
s!'Sap.a.snt Tyler Sitting OF the
fi Cours Of Appeals.
wandered in Some Long Con
p.:isioDs o..,,-FiEdIpg IN the a. a.
''i as.scalI Casa from Cooke County
,.,, NJ the Gazette

l,,-.sor-hsseas corpus from Travis
IS Me- ..s second application for 3 writ OF
I ia,. !: corpus by the relatoE. The rels'
i'0sA1 w. card aed in the penitentiary H.
t0I .s, ren sentences, applied for and re-
DEL st' f.or j ohn Ireland, the Governor
csl, I c -. Of Texas, under date Of Au,
o. l.S o5 1856, full pardon for each and
slsI ~ oissnse. This proclamation OF par
e7sEy -oa landed to and accepted ~ the
dol We nj relstor, for and in his behalf
at'OlIo'A ngust % next thereafter tuT0ed
Flo ~ .so rzr.ion to the father of Telator.
0'sl -. 80 following day-August 3O-ae
% ~ ID the pardon to the peni-
p fs:sD., officials and demanded the
is I',ar of relstor; but they refused
Isl t s@rTotts,ned the pardon, giving as rea-
'lu i .ssrefor the receipt Of telegram
soa ~. .1o G ,yernor ordering said action.
hue don yss returned TO the Cover
ly' Fn-so intorsed thereon the following
hyIl :, order canceling this as having
,s9 is.rcd On misinformation." On
U .5-,b "a 1897, the relstor sued out his
s ns.o vr1t of habeas corpus, upon heaf-
49, -9of which ne was remanded TO custo-
rs fror, which he appealed to this court.
W. ~, r,t nat appeal It WAS held that a PSF
r. ~ n-ocured by fraud wac absolutely
W. -.ii ind thst having relied upon the par
~. With its Endorsement, the relator es-
~. ..5isbed against himself prima faCie the
'-,ocuramen5 of the pardon by fraud, and
ir.S1red The onus of proving no ftSud,
'15 that falling to do this
.ss cours did not err in re-
r,,rdjBg him TO the penitentiGry
snrzst 10, 1887, relator Ggsin sued out
grit Of habeas corp1s and On g hearing
GAG again remanded to custody, and
,,on that Judgment this sppeal is pros
scr-sd. The petition alleges the fore
95i1u facts, and fraud ana misTepresenta-
,ion sDd expressly denied; snd it is
trrt5er alleged th8t on J2nusry Is, 1887,
me then Observation-Disclosures to
7ls5or another pardon, which was In
ended 70 tske the place of the former
r,-iop. but By s. clerical omission only
one Of the ofeuses was covered By said
ny3on. I. WAS also alleged that on the
former trisI Ct the writ the question OF
fsud Vas only raised in the Court OF Ap
meals. but that when it was hesrd in the
district court Governor Ireland was 6b.
sent from the stare, and on t1at account
his testimony could not be procured TO
re5ut the presumption Of fraud had the
Question been raised. To the petition
i attached an afilavit OF ex-GOY-
ernCr Ireland in Which he sfirms that tie
ssid endorsement on the pardon was
made in consequence OF misfepreg 2nta
tons mace 10 him, Which were promised
10 be su6st4utiated by proof, bat that the
prO0! was never furnished: that there
IVES no fraud used upon him to procure
tle pardon. l. also su0stan:iates the
petition 10 regard to the second pardon.
Held: In Fosters case ) 9. 4 G25,
this COUrs held that the Statute conferred
TIE Tigat OF obtaining 8 second writ OF
hs55ss corpus where Important testimony
hss been tb.slned, which, though not
newly discovered, or which though known
70 hin, it wss not ia MS power 10 produce
- the former hearing. The testimony Of
By- G0yernor Ireland comes fairly within
this rule. Ga an appeal of this character
he case must be determined not upon
toe question es TO whether the
evidence IS newly discovered, but
upon the evidence IS We fad 1t EdGuced
OF the hearing and presented in the
record. The tsint Of fraud is removed
from tee proclamation of pardon by eX-
Governor Ireland in his affidavit. The
Judgment IS reversed and the TelatCr Or
dered discharged from the penitentihry.
Wit oths5ess corpus granted and relGtor
discharged. Hurt, J.
Eli Sell vs.. the StSte; appeal from
R8lnes. Where evidence is admitted,
though alleged, and It is apparent that ap-
pelaltco not possibly have been pref
Uilced thereby, this court will not re-
verse the Judgment. The evidence is suf-
1cent 10 support the conviction and there
sno reversible error. All med. White,
P.J.
a, 4. S.eagSlI vs.. the Stale; appeal
HON Cooke. We have carefully ex-
ahmed the record in this case With ref
dtnce &c errors assigned and unassigned,
1aa mad bat one requiring discussion.
upon the trial the State prODounded this
question ID Or. Ferris: "WGat is your
opinion from the examination you made
VI Inc o5dg of the infant as to how the
INJURIES You saw (f0-Wit: the atm broken,
'le neck broken aQd the skull crushed)
were done?" This question wss OBJ
!.C'ed to oy appellant on the ground that
:. VAlled Tor the opinion of the witness IS
~ Individual and not as an expert; wss
Is4e speculation on the part of
-e witness, and was matter
aSOpI which the jury were as
vEyopetent to Judge as the witness. The
.Siecelo1 Was oVerruled and the witness
answered ,.1 81 am of opinion the only
nAt i could have been done, or the only
va "Ay can lmsgine is that the party put
nc NC llisnt on its face and placed his boot
~ ~ ga Inc back Of the besd, and caught
, IN Oh Inc right arm and pulled it, and
-. On the head, crushing the skull
s-H 0GeSklng the neck and arm" Wit
e. .0s S.so stated that this opinion WAS as
-. ..uuliViQual and not as Gu expert, and
n r1as ne III ory might have occurred in
S l--! o.ner ways. Held: The objection
80 -.1.C nave been sustained on the ground
cS. 49,. Incompetent, however, as it
w w vas, did this opinion Of the
I, T,I.sS operate to the iIjary Of appel
d. d. AslES? We think NOT. The corpus
,I ,-N----.nEt IS that the child was born
/, -, a4u came 20 its death by violence
t !. "eI established by the evidence OF
s5DSs OF four other physicians and by
,s,GaLt other testimony. Conceding
pr ~, s1e opinion Of Dr.. Ferris tended to
e e'Dys The corpus delicti, since there
t5s s- oa Lo' &c rstionSl doubt as to this,
pej,s 0gl1ton could rot heve Injured ep-
prs DEM. rights. Thst the appellant WAS
mem 5sN. . IS contrsd!cted by the punish
10 de-. assessed. The jury had the right
uerc' ytge ms death, but chose the more
Thu cnull Punishment. Affirmed. Hurt, J.
INN S Tl' Hutchipgs Us. the State; appeal
srrt In NUS county. John McCullock was
tEs ,T,Su ior theft, g misdeme.por, and he
slgSs S,e =, an appearance bond which he
9iCDnoma;J ). McCullCck, instead of John
6opSou :. This appellant signed said
pesr =. q surety. McCullock failing to ap-